Keith Smyth v Dan Morrissey Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 25 January 2012
• Neutral Citation: [2012] IEHC 14
• Court: High Court
• Date: 25 January 2012

[2012] IEHC 14

THE HIGH COURT

[NO. 168MCA/2010]

Smyth v Dan Morrissey Ireland Ltd

IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN:

KEITH SMYTH

APPLICANT

V

DAN MORRISSEY IRELAND LIMITED

RESPONDENT

PLANNING & DEVELOPMENT ACT 2000 S160

DUBLIN CORPORATION v SULLIVAN UNREP FINLAY 21.12.1984 1985/1/181

RYAN v ROADSTONE DUBLIN LTD UNREP O'DONOVAN 6.3.2006 2006/50/10737 2006 IEHC 53

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 P311

GRIMES v PUNCHESTOWN DEVELOPMENT COMPANY LTD 2002 1 ILRM 409

AMPITHEATRE IRELAND LTD v HSS DEVELOPMENT & HSS (T/A THE MANSFIELD GROUP) UNREP HEDIGAN 22.10.2009 2009/3/739 2009 IEHC 464

PLANNING & DEVELOPMENT ACT 2000 S160(1)

PLANNING & DEVELOPMENT LAW

Unauthorised development

Cessation of unauthorised development - Planning application for quarry - Upgrading of public road required as condition of permission - Obligation to construct footpath and widen road outside house of applicant - Whether development constructed in accordance with permission - Whether development dangerous - Onus of proof on applicant - Whether deviations minimal or material - Balance of convenience - Refusal of offer to purchase strip of land - Unsatisfactory evidence put forward by applicant - Failure to avail of alternative remedy of complaint to local authority - Delay - Whether disproportionate to require road to be torn up - Dublin Corporation v O'Sullivan (Unrep, Finlay P, 21/12/1984); Ryan v Roadstone [2006] IEHC 53, (Unrep, O'Donovan J, 6/3/2006); Grimes v Punchestown Developments Company Ltd [2002] 1 ILRM 409 and Amphitheatre Ireland Ltd v HSS Developments [2009] IEHC 464, (Unrep, Hedigan J, 22/10/2009) considered - Planning and Development Act 2000 (No 30), s 160 - Relief refused (2010/168MCA - Hedigan J - 25/1/2012) [2012] IEHC 14

Smyth v Dan Morrissey Ireland Limited

Facts The applicant brought proceedings seeking an order pursuant to section 160 of the Planning and Development Act 2000 requiring the respondent to cease all unauthorised development on certain lands and seeking an order requiring restoration works to be carried out. As part of development works the respondent sought to acquire some land from the applicant in order to construct a footpath. The applicant refused the offer made and ultimately a footpath was constructed on the opposite side of the road to the applicant's house. On behalf of the applicant it was submitted that the development had not been constructed in accordance with the planning permission granted and represented a danger to the applicant and other road users. The applicant sought a s. 160 order which would involve a realignment of the road and the restoration of the level and width of the road to what it was before the works took place. It was submitted that the deviations from the plans and particulars lodged had removed a footpath from the front of the applicant's property which had given rise to a traffic hazard. The deviation was not de minimus, was very material and no justification was advanced for same.

Held by Hedigan J in refusing the relief sought. In circumstances where the applicant wished to alter the status quo and obtain an order digging up the road, it was for the applicant to show that the road was an unauthorised development. The reliance on conditions of the permission by the planning authority was irrelevant as they had been superseded by the permission from An Bord Pleanála. The applicant had not satisfactorily explained his failure to make an official complaint to the planning authority. In circumstances where the applicant claimed that the road posed a serious danger, there was an onus on him to act promptly. When the applicant had refused to sell land at the front of his house, the respondent had been forced to purchase land on the opposite side of the road. There was only a limited space for the widened road, when the road was constructed, it was closer to the applicant's front wall than he would have wished. It would be wholly disproportionate to require the road to be torn up, lowered and realigned.

Reporter: R.F.

1 Judgment of Mr. Justice Hedigan delivered the 25th of January 2012.

2 1. The applicant resides at Ballyburn, Castledermot, Co Kildare. The respondent is a limited liability company in the quarrying and concrete production industry and has its registered office at Bennekerry, Carlow, Co Carlow.

3 2. The applicant seeks the following reliefs:-

4 (i) An order pursuant to section 160 of the Planning and Development Act 2000 requiring the respondent, its servants or agents, and all persons acting in concert with them to cease all unauthorised development of lands at Ballyburn Road Castledermot Co Kildare.

5 (ii) An order requiring the respondent, its servants or agents, and all persons acting in concert with them to carry out the development of lands the subject matter of planning permission 05/2009 1 in accordance with the said permission and the conditions attached thereto.

6 (iii) An order pursuant to section 160 of the Planning and Development Act 2000 requiring the respondent, its servants or agents, and all persons acting in concert with them to restore the lands at Ballyburn Road, Castledermot, County Kildare to their condition prior to the commencement of the unauthorised development.

Background Facts

7 2 3.1 On the 1 ^st September, 2005 the respondent submitted a planning application for a quarry to Kildare County Council. The application included upgrading of the Ballyburn road which leads to the quarry. In October, 2005 various letters of objection were sent to Kildare County Council on behalf of residents of the Ballyburn Road. On the 26 ^th October, 2005 Kildare County Council sought further information in relation to the planning application. On the 18 ^th May, 2006 Kildare County Council's road design department wrote a letter outlining the conditions to apply to the road. On the 27 ^th September, 2006 Kildare County Council granted planning permission for the quarry requiring improvement of the Ballyburn Road. On the 23 ^rd October, 2006 this decision was appealed to An Bord Pleanála. On the 8 ^th August, 2007 An Bord Pleanála granted planning permission subject 29 conditions.

8 3 3.2 Conditions 1 and 5 are relevant to the Ballyburn Road. Condition 1 states:-

"The development shall be carried out in accordance with the plans and particulars lodged with the application, as amended by further plans and particulars received by the planning authority on the 28 ^th day of March 2006 and the 3 ^rd day of August 2006, expect as may be otherwise required in order to comply with the following conditions…"

9 Condition 5 states:-

"No works permitted by this grant of permission shall commence until the planning authority have confirmed in writing that the following works have been completed to their satisfactions:"

10 a "(a) the upgrading of the junction at Prumplestown Crossroads on the existing N9 to the west of the site;

11 (b) the Ballyburn Road has been improved in accordance with the details submitted to the planning authority on the 28 ^th day of March, 2006 including public lighting and footpaths between the site entrance and Prumplestown Crossroads."

12 4 3.3 The details submitted to the planning authority on the 28 ^th March, 2006 included a drawing of the proposed road works. The drawing provided for a footpath to be constructed in front of the applicants dwelling and provided for a roadway of between 6.0 and 6.5 metres outside the applicants dwelling. In order for the respondent to widen the road it was necessary for it to acquire some land. The respondent made the applicant an offer of €150,000 for two metres in front of the applicant's house. The applicant refused this offer. The respondent then acquired some land from the property across the road from the applicant's property. Instead of constructing the footpath on the applicant's side of the road the respondent constructed a footpath on the opposite side of the road. The roadway eventually constructed had a width of 7.5 metres and the road has also been elevated by 0.2 metres.

13 5 3.4 In these proceedings the applicant submits that the development has not been constructed in accordance with the planning permission granted and that it represents a danger to the applicant and other road users. The applicant is therefore seeking an order pursuant to section 160 of the Planning and Development Act 2000 requiring the respondent to restore the Ballyburn Road to the condition it was in prior to the commencement of the development. This would involve a realignment of the road and the restoration of the level and width of the road to what it was before the works took place.

Applicants Submissions

14 2 4.1 The applicant submits that the failure to construct a footpath has resulted in a situation whereby his vehicle has to substantially enter the carriageway of the road before he can achieve a safe line of sight to the left and right of his entrance. The applicant points out that previously his property was set back some two metres from the road and this verge enabled him to achieve an adequate line of sight. The applicant further submits that if the footpath shown on the drawing referred to in Condition 1 of An Bord Pleanála's permission was constructed as detailed he would have adequate sight lines. Condition 1 of this permission required that the plans and particulars received by the planning authority on the 28 ^th March, 2006 be complied with in so far as they provided for a footpath in front of the applicants dwelling and a roadway of between six and 6.5 metres outside the applicants dwelling. While the width of the footpath is not specified in the drawing, an examination of the planning file discloses a letter from the...